Conflicts between law and religion pose an enduring and acute problem for liberal democracies. I analyze an underexplored aspect of these conflicts: how individuals decide, from a behavioral perspective, to adhere to law or religion. I consider three common approaches to compliance in the literature — the economic analysis model, the legitimacy-fairness analysis model, and the conformity model — and argue that none of them suffices to explain behavior in religion-based normative conflicts.
Instead, I suggest an identity-situation model that draws on all three models but reconstructs the analysis around the interplay of two identities: religious identity and civic identity. I argue that in situations that call for deliberation, the strength of religious identity relative to civic identity influences the mode of analysis — economic or legitimacy-based — deployed to decide whether to obey the law. And, in situations that call for conformity, the relative salience of each identity will impact how the individual settles the normative conflict.
The paper discusses the new framework and considers some of its legal implications. I argue that little can be done about conformity situations, but more can be done about deliberative situations, where the interplay of identities divides normative conflicts into two cases: an easier case and a hard case.
In the easier case individuals are committed both to religion and to the state. They may experience a normative conflict but their general identification with the state is still strong. According to psychological findings they are more inclined to deploy a legitimacy-fairness analysis, namely to be greatly influenced by procedural fairness when deciding normative conflicts. Thus, to encourage a compliant behavior the state should maintain procedures that are transparent, neutral, respectful and inclusive in terms of participation of the concerned individuals. Accordingly, I offer new instrumental justifications for maintaining existing fair procedures as well as creating new ones in order to encourage compliance with the law.
The hard case is harder because individuals have uneven commitments to their religion and to the state. Their identification with the state is low, and they are more inclined to disobey the law under a normative conflict. Research suggests that low-identifiers are less responsive to procedural fairness and more responsive to considerations of utility when they experience conflicts with authorities. I extrapolate and argue that religious low-identifiers are more likely to decide normative conflicts based on a CBA analysis of obeying the law vs. obeying religion.
I further argue that the law mostly holds a disadvantageous position in this comparison, as legal sanctions are often insufficient to counter religious sanctions and rewards. To successfully tackle the hard cases the law has a choice of two: to accommodate religious belief, or to offer positive incentives in addition to sanctions. Positive incentives will alter the CBA of specific conflicts by counteracting religious incentives for noncompliance and will gradually strengthen the law-abiding identity of low-identifiers. This in turn will enable the state to rely more on procedural fairness in the long run. I discuss two examples of such positive incentives in the paper.